U.S. House of Representatives

Bill HR 4828

Conscience Protection Act of 2016

To prevent governmental discrimination against
providers of health services who decline involvement in abortion, and for
other purposes.

IN THE HOUSE OF REPRESENTATIVES

March 22, 2016

Mr. Fleming
(for himself and Mrs. Hartzler)
introduced the following bill; which was referred to the Committee on
Energy and Commerce

A BILL

To prevent governmental discrimination against
providers of health services who decline involvement in abortion, and for
other purposes.

Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,

SECTION 1. Short title.

This Act may be cited as the "Conscience Protection
Act of 2016".

SEC. 2. Findings.

Congress finds as follows:

(1) Thomas Jefferson stated a conviction common to
our Nation's founders when he declared in 1809 that "[n]o provision in our
Constitution ought to be dearer to man than that which protects the rights
of conscience against the enterprises of the civil authority".

(2) In 1973, the Supreme Court concluded that the
government must leave the abortion decision "to the medical judgment of the
pregnant woman's attending physician", recognizing that a physician may
choose not to participate in abortion. Roe v. Wade, 410 U.S. 113, 164
(1973). The Court cited with approval a policy that "neither physician,
hospital, nor hospital personnel shall be required to perform any act
violative of personally-held moral principles", 410 U.S. at 143 n. 38, and
cited State laws upholding this principle. Doe v. Bolton, 410 U.S. 179,
197–8 (1973).

(3) Congress's enactments to protect this right of
conscience in health care include the Church amendment of 1973 (42
U.S.C. 300a–7), the Coats/Snowe amendment of 1996 (42
U.S.C. 238n), and the Hyde/Weldon amendment approved by Congresses and
Presidents of both parties every year since 2004.

(4) None of these laws explicitly provides a "private
right of action" so victims of discrimination can defend their conscience
rights in court, and administrative enforcement by the Department of Health
and Human Services Office for Civil Rights has been lax, at times allowing
cases to languish for years without resolution.

(5) Defying the Federal Hyde/Weldon amendment,
California's Department of Managed Health Care has mandated coverage for all
elective abortions in all health plans under its jurisdiction. Other States
such as New York and Washington have taken or considered similar action, and
some States may go farther to require all physicians and hospitals to
provide or facilitate abortions.

(6) Members of Congress have repeatedly questioned
U.S. Health and Human Services Secretary Sylvia Burwell about California's
ongoing violation which began in August 2014. The Department of Health and
Human Services has acknowledged California's violations and indicated that
the Department was taking them "seriously" and that the matter would be
resolved "expeditiously". Despite numerous complaints and calls for prompt
enforcement of the Hyde/Weldon amendment in California, however, the
Department has failed to resolve the matter.

(7) The vast majority of medical professionals do not
perform abortions, with 86 percent of ob/gyns unwilling to provide them in a
recent study (Obstetrics & Gynecology, Sept. 2011) and the great majority of
hospitals choosing to do so in rare cases or not at all. Therefore, a policy
requiring all health care providers to be involved in abortion could
seriously disrupt the health care system, reducing the number and diversity
of providers available to serve the basic health needs of American women and
men.

(8) A health care provider's decision not to
participate in an abortion, like Congress's decision not to fund most
abortions, erects no new barrier to those seeking to perform or undergo
abortions but leaves each party free to act as he or she wishes.

(9) Such protection poses no conflict with other
Federal laws, such as the law requiring emergency stabilizing treatment for
a pregnant woman and her unborn child when either is in distress (Emergency
Medical Treatment and Active Labor Act). As the Obama administration has
said, these areas of law have operated side by side for many years and both
should be fully enforced (76 Federal Register 9968–77 (2011) at 9973).

(10) Reaffirming longstanding Federal policy on
conscience rights and providing a right of action in cases where it is
violated allows longstanding and widely supported Federal laws to work as
intended.

SEC. 3.
Governmental discrimination against providers of
health services that are not involved in abortion.

Title II of the Public Health Service Act (42
U.S.C. 202 et seq.) is amended by inserting after section 245 the
following:

"SEC. 245A.
Governmental discrimination against providers of
health services that are not involved in abortion.

"(a) In
general. - Notwithstanding any other law, the Federal Government, and any
State or local government that receives Federal financial assistance, may
not penalize, retaliate against, or otherwise discriminate against a health
care provider on the basis that the provider does not -

"(3) facilitate or make arrangements for any of the
activities specified in this subsection.

"(b) Rule of
construction. - Nothing in this section shall be construed -

"(1) to prevent any health care provider from
voluntarily electing to participate in abortions or abortion referrals;

"(2) to prevent any health care provider from
voluntarily electing to provide or sponsor abortion coverage or health
benefits coverage that includes abortion;

"(3) to prevent an accrediting agency or a Federal,
State or local government from establishing standards of medical competency
applicable only to those who have knowingly, voluntarily, and specifically
elected to perform abortions, or from enforcing contractual obligations
applicable only to those who, as part of such contract, knowingly,
voluntarily, and specifically elect to provide abortions;

"(4) to affect, or be affected by, section 1867 of
the Social Security Act (42
U.S.C. 1395dd, commonly referred to as the 'Emergency Medical Treatment
and Active Labor Act'); or

"(5) to supersede any law enacted by any State for
the purpose of regulating insurance, except as specified in subsection (a).

"(c)
Administration. - The Secretary shall designate the Director of the Office
for Civil Rights of the Department of Health and Human Services -

"(1) to receive complaints alleging a violation of
this section, section 245 of this Act, or any of subsections (b) through (e)
of section 401 of the Health Programs Extension Act of 1973; and

"(2) to pursue the investigation of such complaints
in coordination with the Attorney General.

"(B) a hospital, health system, or other health care
facility or organization (including a party to a proposed merger or other
collaborative arrangement relating to health services, and an entity
resulting therefrom);

"(C) a provider-sponsored organization, an
accountable care organization, or a health maintenance organization;

"(D) a social services provider that provides or
authorizes referrals for health care services;

"(E) a program of training in the health professions
or an applicant to or participant in such a program;

"(F) an issuer of health insurance coverage; or

"(G) a group health plan or student health plan, or a
sponsor or administrator thereof.

"(3)
STATE
OR LOCAL GOVERNMENT THAT RECEIVES FEDERAL FINANCIAL ASSISTANCE. - The
term 'State or local government that receives Federal financial assistance'
includes every agency and other governmental unit and subdivision of a State
or local government, if such State or local government, or any agency or
governmental unit or subdivision thereof, receives Federal financial
assistance.

"SEC. 245B. Civil action for certain violations.

"(a) In
general. - A qualified party may, in a civil action, obtain appropriate
relief with regard to a designated violation.

"(b)
Definitions. - For purposes of this section:

"(1)
QUALIFIED
PARTY. - The term 'qualified party' means -

"(A) the Attorney General of the United States; or

"(B) any person or entity adversely affected by the
designated violation.

"(2)
DESIGNATED
VIOLATION. - The term 'designated violation' means an actual or threatened
violation of -

"(A) section 245 or 245A of this Act; or

"(B) any of subsections (b) through (e) of section
401 of the Health Programs Extension Act of 1973 regarding an objection to
abortion.

"(c)
Administrative remedies not required. - An action under this section
may be commenced, and relief may be granted, without regard to whether the
party commencing the action has sought or exhausted available administrative
remedies.

"(d)
Defendants in actions under this section may include governmental entities
as well as others. -

"(1)
IN
GENERAL. - An action under this section may be maintained against,
among others, a party that is a Federal or State governmental entity. Relief
in an action under this section may include money damages even if the
defendant is such a governmental entity.

"(2)
DEFINITION. - For
the purposes of this subsection, the term 'State governmental entity' means
a State, a local government within a State, and any agency or other
governmental unit or subdivision of a State or of such a local government.

"(e) Nature
of relief. - In an action under this section, the court shall grant -

"(1) all necessary equitable and legal relief,
including, where appropriate, declaratory relief and compensatory damages,
to prevent the occurrence, continuance, or repetition of the designated
violation and to compensate for losses resulting from the designated
violation; and

"(2) to a prevailing plaintiff, reasonable attorneys'
fees and litigation expenses as part of the costs.".